A resource for updates to Currie & Rikhof, International & Transnational Criminal Law, 2d ed. (Toronto: Irwin, 2013), and a forum to discuss developments in the field.

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May 2015

16 May 2015

As has been widely reported and commented upon here in Canada over the last while, Omar Khadr was recently released on bail and soon after had his third successful trip to the Supreme Court of Canada (the first two are discussed in Chapter 10 of the book). Khadr's saga, which has bitterly divided Canadians, is probably a familiar one to most readers of this blog: the Canadian citizen, taken as a young teenager by his terrorist father to fight for Al-Qaida in the Middle East, who allegedly threw a grenade that killed a US soldier in Afghanistan; captured, imprisoned and abused at Guantanamo Bay with the complicity of Canadian government officials; pleaded guilty to eight "crimes" that were not crimes in law before an improperly-constituted court; released to serve his sentence in Canada with the reluctant consent of the Harper government, which then attempted to have him serve his concurrent sentences consecutively and as an adult offender, despite him having been 15 at the time of the event. It was the latter effort that was stopped by the Supreme Court's decision this past week.

Khadr's case is a complex and controversial one, to say the least. The level of rancour on both sides of the debate has been noteworthy, but particularly among those who see Khadr as a hardened terrorist who should be imprisoned, deported or -- if you follow the bloodthirsty social media dialogue -- executed.

The Khadr family is infamous and unpopular in Canada, and not without reason, given their association with Osama bin Laden, the father's taking up arms for Al-Qaida, and the mother's public statements in support of Al-Qaida. It strikes me as a bit odd, however, that so many Canadians are so exercised about Omar Khadr's case, one in which the contours of his legal liability are so blurry, when there is hardly any indignation about the case of his older brother, Abdullah Khadr, who has been living in Toronto for a number of years. In fact, other than some headlines around the Canadian government's unsuccessful attempt to extradite him to the US (discussed below), Abdullah Khadr's case has fallen completely below the radar. This is odd because the case for labelling Abdullah a "terrorist" seems so much clearer.

The background of Abdullah's case can be read in the court decisions issued in his extradition proceedings, first by Justice Chris Speyer of the Ontario Superior Court of Justice, and then by Justice Robert Sharpe of the Ontario Court of Appeal. In short, Abdullah, who was known to be involved with Al-Qaida in the Afghan conflict, was a person of interest to the US government in the "war on terror", so much so that a bounty of $500,000 was put on his head. He was apprehended in Islamabad, Pakistan by the Pakistani secret service, and at the instigation of the CIA was interrogated and was badly mistreated. Sincere and significant efforts were made by various Canadian officials to get access to him, efforts which were stymied by the Pakistani government -- again at the instigation of the CIA -- in violation of international law duties that both of those countries owed to Canada (to say nothing of the human rights violations).

Pakistan eventually released Abdullah into the custody of Canadian RCMP officers, and he voluntarily gave statements to these officers in an interview that took place at Pearson Airport in Toronto. The US sent an extradition request for Khadr. Other statements taken by FBI were excluded from the extradition proceeding by Justice Speyer, and in the end he stayed the extradition on the basis that the US government had abused the process of the Canadian court due to the troubling illegality of their treatment of Khadr. However, he ruled that if his abuse of process decision was mistaken, then Khadr could be committed for extradition on the basis of the statements he gave to the RCMP officers. His ruling on this point is worth setting out:

If I erred in this decision, I would have committed Khadr, based upon his remarks contained in the Pearson statement, on the following Canadian offences […]:

• Directly or indirectly providing or making property available knowing that, in whole or in part, it will be used by or will benefit a terrorist groups contrary to section 83.03(b) of the Criminal Code;

• Knowingly participating in or contributing to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of the terrorist group to facilitate or carry out terrorist activity contrary to section 83.18 of the Criminal Code;

• Commission of an indictable offence for the benefit of, at the direction of, or in association with, a terrorist group contrary to section 83.2 of the Criminal Code.

Justice Speyer's decision was upheld on all points by the Ontario Court of Appeal. Justice Sharpe's decision is worth reading for its resounding condemnation of sacrificing human rights and due process in the name of national security, but most relevant here was his response to what he called the Crown's "emotive" argument that, by staying the extradition, the Canadian courts had allowed "an admitted terrorist collaborator to walk free:"

...the stay of the extradition proceedings does not remove the Attorney General's capacity to deal with the allegations of terrorist activity according to law. Khadr is a Canadian citizen and, as conceded by counsel for the Attorney General in oral argument, under the Criminal Code, Khadr is liable to be prosecuted in Canada for acts of terrorism committed outside Canada. Thus, even if I am wrong in concluding that the extradition judge was not required to engage in balancing the stay against the societal interest in allowing the committal to proceed, the fact that Khadr is liable to prosecution in Canada would tip the scales in favour of the stay.

An application by the Crown for leave to appeal to the SCC was dismissed.

To parse out and expand slightly upon Justice Sharpe's reasons, Canada can exert extraterritorial jurisdiction over all of the terrorist offences in which Khadr was implicated, based on the nationality principle (and probably even on the basis of the even broader universal-type jurisdiction in the Code provisions). If they need evidence, that probably isn't an issue -- the Americans were clearly ready to prosecute him and no doubt had a large dossier of evidence which they could share with the Canadian Crown by way of a mutual legal assistance request. And they have his own statements, given to the RCMP, which Justice Speyer ruled were taken "impeccably" by the officers involved. Since Abdullah Khadr is such a dangerous terrorist that the Crown was willing to fight for his extradition all the way to the high court, then it would have been reasonable to expect an immediate prosecution once the extradition proceedings were over.

Instead, nothing. Abdullah Khadr has, by way of the few media reports I could find, been living quietly in Toronto, probably hoping that no one gets the idea to prosecute him.

Why is this? Specifically, if the federal government is so keen to combat terrorism that they are passing draconian legislation like Bill C-51; that they so enthusiastically extradited Muhammad 'Isa to face a life sentence without parole in the US; that they are so unpleasantly desperate to demonize and legally buffet Omar Khadr, a child soldier; that they were willing to spend likely hundred of thousands of taxpayer dollars on an ill-founded extradition proceeding for Abdullah Khadr; then why on earth would they not prosecute Abdullah, against whom there is what appears to be a well-founded case?

I have looked into this a bit but can turn up nothing. I have not put the question to the Crown directly; perhaps someone should. One colleague with whom I spoke speculated that the Crown may feel that the case is too tainted by the profound abuses and breaches of the law that lurk in the background of Abdullah Khadr's case. They may feel that any evidence obtained from the US would be excluded by Canadian courts under the same abuse of process doctrine that stopped the extradition. This seems a reasonable hypothesis. If this is the case, however, then it is disturbing that the Crown was so keen to extradite Khadr to face the very government that perpetrated all of this abusive conduct.

It is all a bit mysterious and, well, odd. It is odd that the federal government continues to pour its energy into persecuting Omar Khadr, whose case is legally complex and has gained them little but a lot of bad PR. And it is odd that so many Canadians are baying for the blood of Omar Khadr, and ignoring the presence of what appears to be an admitted terrorist living quietly in their midst.